Last week, Priyanka Chopra-Jonas and Nick Jonas discussed their path to parenthood via surrogacy in Vogue magazine.
The couple explained that their decision to use a surrogate to have their daughter arose from medical necessity, as a result of unspecified medical conditions, which the couple wish to keep private. In that, their experience reflects the journey of many couples we have seen.
A decision to embark on surrogacy often comes as part of a consideration of all the methods available to build a family, including donation and adoption. Which route to parenthood is best will differ according to circumstances. If you are considering surrogacy there are many things to consider. One of the main considerations is whether you will definitely be able to obtain legal parenthood of any child born; each country has its own rules on who will be or can be a legal parent when a child is born through surrogacy, as well as whether parenthood is assigned pre-birth or post birth, and what formal process is required.
There is no substitute for research and preparation if you decide to pursue surrogacy. If everything is planned well, surrogacy can be a straight-forward journey. However, problems can arise if the arrangements have not been properly considered. Key things to look at include:
- What is the law on surrogacy where you live, where the arrangement will take place and in any country/countries of which you are nationals/citizens. If more than one country is involved, how do the laws interplay, do they work together, or do they clash?
- Who will be classed as a legal parent in each country? Who will be eligible to be a legal parent?
- If there are conditions on parenthood, or a formal process is required, do you meet the necessary criteria? How long will the process take and what will it cost?
- What are the costs involved – this varies significantly depending on where the arrangement takes place, as does what you are allowed to pay your surrogate.
- What is the availability of surrogates – this tends to vary depending upon the country and whether commercial surrogacy is permitted, or not.
- If your arrangement will involve more than one country, will you meet visa and immigration requirements for when the baby is born and then when you want to go back home with your baby, and how long may the process of getting permissions or documents take?
- What kind of relationship do you want with your surrogate – do you want to form a lasting relationship, or prefer something more at arms’ length?
If you live in England or Wales, it is important to understand that regardless of where in the world your surrogacy takes place, and whether that country classes you as a legal parent or not, you will need a Parental Order from the English Court. This is a process which as the law stands, can only take place after the baby is born. The granting of a Parental Order is conditional on a number of criteria known as the “s54 checklist” (arising from the statute it comes from, s54 of the HFEA 2008) so a key part of preparation will be to ensure, before the surrogacy arrangement is embarked upon, that you will meet those criteria when the time comes.
If you are undertaking surrogacy in England, any clinic will now insist that both the intended parent(s) and the surrogate have legal advice before treatment starts. If the arrangement takes place without the assistance of a clinic then of course the requirement does not apply, but it is still an essential step.
In addition to legal advice there are various resources available, to help anyone contemplating surrogacy consider whether it is right for them. These include the Department of Health’s “Surrogacy Pathway” and the FCO’s guide to international surrogacy.
If you are considering surrogacy and you have questions, our experienced Family Law Team can help.
